73 F.

3d 374
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Richard Dee THOMAS, Plaintiff-Appellant,

v.
Frances M. PALACIOS, individually and in her official
capacity as Repealed-Court Commissioner, DefendantAppellee.
No. 95-4094.

United States Court of Appeals, Tenth Circuit.

Dec. 26, 1995.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

ORDER AND JUDGMENT1
HENRY, Circuit Judge.

Plaintiff Richard Dee Thomas appeals the dismissal of his complaint under 28
U.S.C.1915(d). After examining the briefs -and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument. For the reasons set
forth below, we affirm the decision of the district court.

Mr. Thomas's pro se complaint alleges that his July 1993 arrest violated his
Fourth, Eighth, and Fourteenth Amendment rights. He asserts that he was
arrested under a warrant issued by the defendant Frances Palacios, a Utah
circuit court commissioner. Mr. Thomas invokes the Utah Supreme Court's
decision in Salt Lake City v. Ohms, 881 P.2d 844 (Utah 1994), which held that
a state statute authorizing court commissioners to enter final judgments and

impose sentences in misdemeanor cases violated certain provisions of the Utah

Constitution. Id. at 851. Mr. Thomas maintains that Ohms establishes that
Commissioner Palacios's issuance of the arrest warrant violated his rights under
the United States Constitution. Mr. Thomas seeks damages, attorneys fees and
costs, the "grant [of an] injunction," and a "release from unconstitutional
imprisonment.' " Rec. vol. I, doc. 2.
3

The district court referred the case to a magistrate judge, who recommended
dismissal of the complaint under section 1915(d), and then adopted the
magistrate judge's recommendation. We review the district court's dismissal of
a complaint under section 1915(d) for an abuse of discretion. Denton v.
Hernandez, 112 S.Ct. 1728, 1734 (1992); Fratus v. DeLand, 49 F.3d 673, 674
(10th Cir.1995). A complaint is frivolous under section 1915(d) "only if it lacks
an arguable basis in either law or in fact.' " Id. (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989)).

For several reasons, we conclude that the district court did not abuse its
discretion in dismissing Mr. Thomas's complaint. First, as the magistrate judge
noted, Commissioner Palacios is entitled to absolute immunity from Mr.
Thomas's claims for damages. Judges and individuals performing judicial and
quasi-judicial functions are entitled to absolute immunity, see Hunt v. Bennett,
17 F.3d 1263, 1266 (10th Cir.), cert. denied, 115 S.Ct. 107 (1994); Russ v.
Uppah, 972 F.2d 300, 303 (10th Cir.1992), and the issuance of an arrest
warrant constitutes a judicial function, see Foster v. Walsh, 864 F.2d 416, 417
(6th Cir.1988) (court clerk who issued arrest warrant entitled to absolute
immunity); Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir. en banc) (same),
cert. denied, 469 U.S. 832 (1984). Although the doctrine of absolute immunity
does not protect officials who act "in the clear absence of all jurisdiction,' "
Hunt, 17 F.3d at 1266 (quoting Stump v. Sparkman, 435 U.S. 349, 356-57
(1978)), there is no indication that Commissioner Palacios acted in such a
manner here. The issuance of arrest warrants by court commissioners is
authorized by statutes not addressed in Ohms. See Utah Code Ann. 78-717.5(1)(c) (authorizing "magistrates" to issue warrants), 77-1-3(4) (defining
"magistrate" to include court commissioners) (1995).

Mr. Thomas's claim for injunctive relief is also not supported by the applicable
law. The Supreme Court has concluded that a municipal ordinance authorizing
a municipal court clerk to issue an arrest warrant did not violate the Fourth
Amendment. See Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972)
("There has been no showing whatever here of partiality, or affiliation of these
clerks with prosecutors or police."). Applying Shadwick, a number of courts
have concluded that the issuance of arrest and search warrants by court

personnel who are not judges does not violate the Fourth Amendment. See,
e.g., United States v. Mitro, 880 F.2d 1480, 1485 (1st Cir.1989) ("That an
assistant clerk rather than a state court judge issued the warrant did not violate
the Constitution...."). The fact that the Utah Constitution, as interpreted in
Ohms, does not allow court commissioners to enter final judgments and impose
sentences does not indicate that the United States Constitution prohibits them
from issuing arrest warrants.
6

Finally, the district court did not abuse its discretion in dismissing Mr.
Thomas's claim for a release from imprisonment. The facts that he has alleged
do not involve the violation of a constitutional right, and, as the magistrate
judge observed, Mr. Thomas does not allege that he has exhausted his state
remedies.

Accordingly, the district court's order dismissing Mr. Thomas's complaint

under 28 U.S.C.1915(d) is AFFIRMED.2

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order. 151 F.R.D. 470 (10th Cir.1993)

Mr. Thomas has filed several motions to supplement and correct the record.
The materials offered by Mr. Thomas are not necessary to the consideration of
the issues in this appeal. Accordingly, Mr. Thomas's motions are denied